SYNOPSIS The petitioners are filing the instant writ petition in public interest challenging the Constitutional validity

of the Civil Liability for Nuclear Damage Act, 2010, seeking a safety reassessment of all nuclear facilities in India, and a comprehensive longterm cost-benefit analysis of the nuclear plants in India. This petition seeks a stay on all proposed nuclear plants till the safety and cost-benefit analysis is carried out. This petition also seeks certain other reliefs in the interest of right to life, right to clean environment and right to healthy & safe enjoyment of life. It is to be noted that a nuclear accident or leak of radiation can cause large-scale damage to life and health in a densely populated country like India. This petition highlights how under the pressure of foreign countries and the multi-billion dollar nuclear industry, the Government has been pushing forward an expensive, unviable and dangerous nuclear power programme without proper safety assessment and without a thorough comparative cost-benefit analysis vis-à-vis other sources of energy, especially renewable sources. Most of the nuclear reactor and equipment imports for which orders are being made are of extremely dubious quality and safety standard. This petition uses the proposed Jaitapur nuclear power plant (considered to be the world’s largest) as a case study to highlight the mindless decision-making in recent times. The virtually non-existent regulatory system in India has also ignored the warning signs from the recent nuclear disaster in Japan. The recent Fukushima nuclear disaster in Japan has turned out far graver than originally feared. The reactors, and overheated spent-fuel pools have spewed out radioactivity that has now spread over hundreds of square kilometers. Tens of thousands of people have had to be evacuated from a 30 km radius and beyond. Water, soil, milk and vegetation in large areas have been contaminated and many countries around the world have banned food imports from Japan. The disaster has cost Japan hundreds of billions of dollars and has made a large area uninhabitable. The Fukushima disaster highlights, 25 years after the big nuclear disaster of Chernobyl, the inherent hazards of nuclear power generation. According to news broadcaster BBC, at Chernobyl the “legacy of radiation will last for centuries and would claim hundreds of thousand of more victims than Hiroshima and Nagasaki

combined. More then 5 million people live on radiation contaminated land and they will develop new cancers and genetic mutations.” Even a highly industrialized country with a good industrial safety record like Japan could not anticipate and control these hazards. After Fukushima disaster Germany, Italy and Switzerland have announced a complete withdrawal from further use of nuclear power. Japan is also considering phasing out its nuclear plants. However, in India, in the aftermath of Fukushima disaster Secretary of the Department of Atomic Energy, Govt. of India who is the Chairman of the Atomic Energy Commission stated that Indian nuclear plans are “one hundred percent safe.” Such a statement without being based on facts or on assessment is intended to mislead the people in this county. It also shows that the Indian establishment has completely shut its eyes to the issue of nuclear safety. Not only India has a poor industrial safety track record and dismal post-disaster management systems (as is clear from Bhopal gas tragedy, railway accidents, earthquakes etc.), our Government also seems to be in denial mode of the major safety risks of nuclear plants. If, for example, people from within 30km radius of the nuclear plant in Narora, Uttar Pradesh (which is about 150km from Delhi) have to be evacuated, then that would mean rehabilitating tens of millions of internal refugees, which in all likelihood would prove to be impossible.

This petition is not against the use of nuclear energy per se. This petition highlights that there are following risks and costs associated with nuclear energy and the same must be factored in risk & cost calculations, and fool-proof level of safety must be ensured through appropriate regulatory mechanisms. The costs & risks of nuclear power are:

Risk of catastrophic accident due to natural factors such as seismic events, floods etc., human errors, mechanical failures and other unanticipated factors, causing large-scale destruction of life & property, with far-reaching health and other effects across

generations and across hundreds of kilometers, making large areas

uninhabitable for decades, and costing tens of thousands of crore rupees b) c) Risk of leakage of radioactive fuel and other radioactive material Storage of radioactive nuclear waste, considering no satisfactory sustainable solution has been found d) Danger of theft of radioactive material, nuclear proliferation, nuclear terrorism, attack on nuclear installations and sabotage e) f) Severe health and environmental effects of uranium mining Lack of availability of usable uranium and its diminishing reserves world-wide, and the lack of a viable alternative to uranium g) h) i) j) k) l) m) Exorbitant cost of setting up a nuclear power plant Huge time requirement in commissioning of a plant High maintenance and security costs Exorbitant and ever-escalating cost of decommissioning the plant High displacement and human cost Huge demand of water and destruction of forests/trees Lack of availability of trained workforce, and consequent risk of human error n) Damage to marine environment and life as most nuclear projects are on the coastline All the above costs and risks musts be thoroughly factored in and the highest level of safety must be ensured before a plant is cleared for construction. Albert Einstein once said, “one of the great mistakes in my life I made was to recommend the conversion of the nuclear energy into destructive energy.” Petitioners submit that this potential for catastrophic destruction being inherent in nuclear energy, the approach of anyone who wishes to use this energy for peaceful purposes has to be extremely mindful of the consequences should a mischance occur. Noted energy researcher Prof. Benjamin Sovacool has stated that nuclear energy is “excessively capital intensive, take years to build, is prone to cost overruns, and is economically competitive only when significantly subsidized…and has suffered from

unacceptable rate of accidents.” He has further stated that “uranium reserves

would be exhausted around 2020, uranium is already expensive and uranium mining is extremely hazardous.” Considering that India is one of the largest producers of electricity in the world and also one of its most inefficient users, there is no reason why the country’s electricity needs cannot be met through its efficient use, by reducing the power-plant inefficiencies, reducing transmission & losses, and investment in solar and other renewable sources of energy that are becoming cheaper and efficient with each passing day. Since this analysis has not been done, the true risks and costs of nuclear energy have not been determined and no comparative cost-benefit analysis has been carried out, the Government plants to promote nuclear energy at a massive unmanageable scale are therefore made without proper application of mind, by ignoring relevant considerations, by taking into account irrelevant considerations and are arbitrary. The same, therefore, violate the mandate of Article 14 of the Constitution of India. This petition comes at a time when India has decided to massively expand its nuclear power generation and set-up mega nuclear facilities in immediate future. Given the poor safety record of India’s nuclear programme and lack of independent & credible regulatory structure, the plans of the central government are misconceived, made for extraneous considerations and would seriously impair the fundamental right to life of the people of India. Former Chairperson of Atomic Energy Commission who retired two years ago Dr. Anil Kakodkar candidly explained why the Government is importing nuclear reactors and not using indigenous technologies. In an article published in prominent Marathi newspaper Sakaal Times on 5th January 2011 he wrote (translated from Marathi), "We have to keep in mind the commercial interests of foreign countries and of the companies there... America, Russia and France were the countries that we made mediators in these efforts to lift sanctions, and hence, for the nurturing of their business interests, we made deals with them for nuclear projects." The plans of the Government to build many expensive and extremely large-size reactor plants have already met huge resistance from local people where the Government has had to impose Section 144 CrPC, detain hundreds of people,

blocked information from the proposed plants and several protestors have been injured in police firing. The Government does not seem to have learnt a lesson from Fukushima, Chernobyl or the Three Mile Island accidents and has also ignored cost-benefit calculations forgetting the experience of infamous Enron power project. The promotion of nuclear power on a massive scale at huge cost to the exchequer is a classic example as to how the Government’s policy gets disconnected from concern for public welfare and gets corrupted and subverted by extraneous considerations and corporate pressures. It is to be noted that each nuclear power plant has a life span of about 40 years after which it has to be decommissioned and decontaminated at exorbitant cost running into thousands of crores of rupees. The above situation makes a compelling ground for the invocation of the Precautionary Principle. The precautionary principal necessitates that if there are reasonable scientific grounds for believing that a process, product or technology may not be safe then the industry must not be allowed to proceed ahead unless that industry or establishment is able to demonstrate reasonable certainty of no harm. This principle can also be applied to existing technologies when new evidence appears suggesting that they are less safe than what the society had previously expected, as has been in the case of tobacco, greenhouse gases, chloro-floro carbons, genetically modified food etc. This Hon’ble Court in A. P. Pollution Control Board vs. M V Nayudu, (1999) 2 SCC 718, held that precautionary principle is part of the law of the land. The principle mandates that when a new technology or process can cause serious and irreversible harm to human health and the environment, precautionary measures should be taken even if some cause and effect relationships are not fully established scientifically. In this context, the proponent of the uncertain activity rather than the public has to bear the burden of proof. The nuclear industry and the foreign countries of US, France and Russia with whom we have signed nuclear agreement, have been successful in pushing the Government to get a liability law for nuclear damage enacted that indemnifies nuclear manufacturers/suppliers and caps the financial liability of operators. Such a

law clearly violates the ‘polluter pays’ principle and the ‘absolute liability’ principle that have become recognized as part of the law of the land under Article 21 of the Constitution, and puts to grave and imminent risk the right to safety, health, clean environment and life of the people of India guaranteed under Article 21 of the Constitution. Hence the instant writ petition. LIST OF DATES

DATE 26.01.1950

PARTICULARS Constitution of India comes into force. Article 14, 19, 21 guarantee right to equality, basic freedoms and life respectively. This Hon’ble Court interprets the said

fundamental rights to include right to information, freedom from arbitrariness, right to health, clean environment, public safety, and life. Clean environment includes environment free from harmful radiation. This Hon’ble Court holds that ‘precautionary principle’, ‘polluter pays principle’, ‘absolute liability principle’ to be part of the law of land as a facet of 03.08.1954 right to life guaranteed by the Constitution. Department of Atomic Energy (DAE) is set-up under the direct charge of Prime Minister of India. The stated objective 01.03.1958 1962 28.03.1979 of DAE is to promote the use of nuclear energy. Atomic Energy Commission (AEC) is set-up under the DAE. Secretary DAE is the ex-officio Chairperson of the AEC. Atomic Energy Act comes into force. United States: Accident at Three Mile Island nuclear reactor due to equipment failure and operator error that result in loss of coolant and partial core meltdown officially costing 1979 15.11.1983 26.04.1986 US $2400 million. First safety audit conducted after the three mile island incident Atomic Energy Regulatory Board (AERB) is set-up. AERB is made answerable to the Atomic Energy Commission. Ukraine: Chernobyl disaster occurs wherein mishandled








necessitating the evacuation of 300,000 people from the region and dispersed radioactive material across Europe. It April, 1986 04.05.1987 costs tens of thousands of lives and about US $ 10 billion Second safety audit conducted by AERB following the Chernobyl disaster Fast Breeder reactor at Kalpakkam has to be shut down due to simultaneous occurrence of pump failures, faulty instrument signals, and turbine malfunctions that culminate in a refueling accident that ruptures the reactor core with 23 10.09.1989 fuel assemblies, resulting in a 2-year shutdown It was discovered that nuclear reactor at Tarapur in Maharashtra had been leaking radioactive iodine and radiation levels of radioactive iodeine-129 were more than 700 times the normal levels. Repairs to the reactor take 13.05.1992 31.03.1993 more than 1 year A malfunctioning tube causes the Tarapur nuclear reactor to release 12 curies of radioactivity The Narora atomic power station in U.P. suffers a fire at two of its steam turbine blades, damaging the heavy water 02.02.1995 reactor and almost leading to a meltdown The Rajasthan atomic power station leaks radioactive helium and heavy water into the river, necessitating a 2-year July, 1995 22.10.2002 shutdown for repairs Third safety audit conducted after Dr. A Gopalakrishnan assumes office as Chairman of AERB About 100kg of radioactive sodium at a fast breeder reactor leaks into a purification cabin ruining a number of valves 24.12.2006 and operating systems One of the pipes carrying radioactive waste from the Jadugoda uranium mill ruptures and causes radioactive

material to disperse over more than 100 square km Civil Liability for Nuclear Damage Act, 2010 comes into force despite vigorous opposition from across citizens groups since by indemnifying the manufacturers/suppliers, fixing low liability cap for operators and providing

exceptions, the said Act violates right to life, polluter pays

principle and absolute liability principle. MoEF announces environment clearance for mega-nuclear project at Jaitapur, Maharashtra that would use imported French nuclear reactor which is untested and extremely expensive. This clearance was given just six days before


the French President’s visit to India Japan: Disaster strikes at Fukushima nuclear plant due to earthquake and tsunami resulting in equipment failures, nuclear meltdown and release of huge amount of

radioactive material costing tens of billions of dollars and

complete shutdown, and a large-scale human evacuation Statement made by the Prime Minister that “the initial results of the six safety review Committees set up by the Government will be made public. Action taken on previous safety reviews will be put in the public domain.” Till date the


respondents have not complied with this assurance. Hence the instant writ petition.

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